United States v. Jeffrey Glenn Galloway

CLAY, Circuit Judge,

dissenting.

We explained in United States v. Francis that, “[t]o reverse a conviction because of an improper non-flagrant statement, a reviewing court must determine that: 1) the proof of the defendant’s guilt is not overwhelming; 2) the defense counsel objected; and 3) the trial court failed to cure the impropriety by failing to admonish the jury.” 170 F.3d 546, 550 (6th Cir.1999); see also United States v. Bess, 593 F.2d 749, 757 (6th Cir.1979) (articulating this test). Since the government lacked an “overwhelming” case and the trial court did not offer a curative instruction, I respectfully dissent.

The majority amply summarizes the case against Galloway, which, they claim, is “vast.” As the majority explains,

Galloway paid cash for everything — the airfare, the hotel, and the train — for both he and Kirsch. Furthermore, he used two travel agents in planning the trip, paying for all arrangements in cash, yet asking each travel agent to indicate that he had paid by check. Also, he had possession of Kirsch’s passport, baggage claim stub, and tickets upon their arrival in Cincinnati. Lastly, Galloway repeatedly lied about the fact that he had been to Amsterdam.

In addition to this evidence, the prosecution also offered the testimony of Kirsch, the woman caught with the drugs. Kirsch told the jury that she worked as Galloway’s “mule,” or his subordinate responsible for physically carrying narcotics that actually belonged to Galloway.

The case has some weaknesses. Kirsch, the government’s only witness, had an obvious motive to lie — she exchanged her testimony for a substantially reduced sentence. Customs agents found the drugs on Kirsch, not Galloway. Furthermore, the prosecutors hypothesized that Kirsch worked as Galloway’s “mule,” meaning that Kirsch carried the drugs (and assumed the risk of arrest) for Galloway. A reasonable person might reach the intuitive conclusion that it would defeat the purpose of the mule-boss relationship if the boss (allegedly Galloway) traveled with the mule (allegedly Kirsch).

As quoted above, the majority lists four other pieces of evidence, none of which conclusively establishes Galloway’s guilt. First, Galloway paid for Kirsch’s tickets and transportation. Galloway, however, claimed that Kirsch was his girlfriend, which could explain his generosity. Second, Galloway had Kirsch’s passport, baggage claim stub, and tickets, but it is simi *635 larly reasonable that someone might carry various papers for his girlfriend. Third, he paid cash for everything and told the travel agent to indicate that he paid by check. This is genuinely suspicious behavior. Finally, Galloway lied to the customs officials about his trip to Amsterdam. Perhaps he denied visiting Amsterdam because he had used drugs while there and became frightened when airport drug dogs alerted to his luggage. Regardless, his attempt to mislead the customs officials is also clearly suspicious behavior. Taken as a whole, therefore, the government’s case consists of Kirsch’s highly motivated testimony, corroborated by several instances of suspicious behavior. Under Francis, we must initially ask whether this is “overwhelming” evidence against Galloway. 170 F.3d at 550 .

To do so, we must first decide what constitutes an “overwhelming” case. Neither the Supreme Court nor any lower court has explained precisely what quantum of evidence is “overwhelming” enough to make prosecutorial misconduct effectively harmless error, at least when combined with an objection and curative instruction. 1 Only once, in Berger v. United States (Berger II), 295 U.S. 78 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935), overruled in part on other grounds, Stirone v. United States, 361 U.S. 212 , 80 S.Ct. 270 , 4 L.Ed.2d 252 (1960), has the Supreme Court suggested that an “overwhelming” case might mitigate the problems caused by an improper prosecutorial comment. Id. at 89, 55 S.Ct. 629 . Berger thus provides meaningful guidance in our attempt to determine whether the case against Galloway was “overwhelming.”

In Berger , the indictment charged the defendant, Berger, with having conspired with seven others to utter counterfeit federal reserve notes. Id. at 79-80 , 55 S.Ct. 629 . The indictment also contained eight additional substantive counts and named other defendants, including Katz, Rice, and Jones. Id. at 80 , 55 S.Ct. 629 . Katz accepted a guilty plea on the conspiracy count and testified for the government at the trial in exchange for a nolle prosequi on the substantive counts. Id. Berger was convicted only of conspiracy, while his co-conspirators were convicted of the substantive offenses. Id. at 88 , 55 S.Ct. 629 .

According to the Court, the evidence “tended to establish not a single conspiracy as charged but two conspiracies — one between Rice and Katz and another between Berger, Jones and Katz.” Id. The only link between the two groups was that each was connected with the same fraudulent notes. Id. There was no evidence that Berger conspired with Rice and Katz. Id. at 80 , 55 S.Ct. 629 .

Katz was the only witness who testified to Berger’s alleged role in the Berger-Jones-Katz conspiracy. See United States v. Berger (Berger I), 73 F.2d 278, 279 (2d Cir.1934) (L.Hand, J.) (explaining the facts in greater detail), rev’d by Berger v. United States (Berger II), 295 U.S. 78 , 55 S.Ct. 629 , 79 L.Ed. 1314 . The prosecution also introduced a woman, Goldie Goldstein, to identify Berger as a member of the Berger-Jones-Katz scheme, but when on the stand, she had difficulty doing so. Berger II, 295 U.S. at 86 , 55 S.Ct. 629 . Reflecting a pattern of “undignified and intemperate” behavior, the prosecutor argued:

Mrs. Goldie Goldstein takes the stand. She says she knows Jones, and you can bet your bottom dollar she knew Berger. She stood right where I am now and *636 looked at him and was afraid to go over there, and when I waved my arm everybody started to holler, “Don’t point at him.” You know the rules of law. Well, it is the most complicated game in the world. I was examining a woman that I knew knew Berger and could identify him, she was standing right here looking at him, and I couldn’t say, “Isn’t that the man?” Now, imagine that! But that is the rules of the game, and I have to play within those rules.

Id. at 86-87 , 55 S.Ct. 629 (emphasis in original). Thus, the prosecutor impermis-sibly claimed to know that Goldstein could identify Berger. Although the Court found that this remark, in light of the prosecutor’s other inappropriate comments, warranted reversal, the Court noted that “[i]f the case against Berger had been strong, or, as some courts have said, the evidence of guilt ‘overwhelming,’ a different conclusion might be reached.” Id. at 89 , 55 S.Ct. 629 .

Berger does not expressly define “overwhelming,” and the above-quoted sentence is really dicta. It is significant, however, that the government’s case “depend[ed] ... upon the testimony of Katz, an accomplice with a long criminal record.” Id. at 89 , 55 S.Ct. 629 . The Court characterized the government’s case as “weak.” Id.

The presence of corroborating evidence makes the case against Galloway somewhat stronger than the case against Berger, but Berger nevertheless shows the strain the majority places on the word “overwhelming,” because both the case against Galloway and the case against Berger depend heavily on questionable accomplice testimony'. 2 Literally, overwhelming means “overpowering.” See WebsteR’s ThiRD New International Dictionary 1611 (1993). The majority has to contend that the difference between Galloway’s case and Berger is the difference between weak evidence and overpowering evidence, which is hard to accept.

A look at this Court’s prior handling of a similar prosecutorial misconduct cases is also illuminating. Our opinion in United States v. Carroll, 26 F.3d 1380 (6th Cir.1994), involves very similar legal issues to the case now before the Court. In Carroll , the United States tried the defendant for various drug-related offenses. Id. at 1382 . Robin Patrick and her husband, David Patrick, were the crucial witnesses. Id. The government’s ease consisted mostly of their eyewitness testimony, although other witnesses identified the cocaine that the defendant allegedly sold to the Pat-ricks. Id. The prosecutor’s closing statement included the following argument:

Robin Patrick has already pled guilty. She has not been sentenced. She’s facing ten to fifteen years in the penitentiary. If she comes in here and she tells the truth, cooperates fully, the government may, meaning me, make a 5K1 motion, which allows the judge to sentence her ... below the ten to fifteen years....

*637 If she comes in here and lies, that agreement is void. If she comes in here and gets on this witness stand and the judge believes she lied, she’s jeopardizing herself further....

I submit to you that Robin and Ritchie Patrick are credible witnesses. I submit to you that no person would jeopardize themselves with this agreement to do anything but tell the truth....

Id. at 1383 n. 2. Defense counsel did not object. In the government’s closing, the prosecutor reiterated this argument with respect to both witnesses. Id. at 1383 . This time, defense counsel objected, but was overruled. Id. Although the Carroll Court found that the improper statement was not “flagrant,” it ordered a new trial anyway because the evidence of the defendant’s guilt was not “overwhelming,” defense counsel objected to the one of the prosecutor’s statements, and the court did not cure the error. Id. at 1390 .

The government offered only one accomplice against Galloway, whereas prosecutors offered two in Carroll . With an extra witness, one could argue that the Carroll prosecutors had their conviction reversed despite a stronger case than the one against Galloway, particularly since the Carroll prosecutors also had witnesses who identified the cocaine sold by the defendant to the Patricks.

Contrast Carroll with another case, United States v. Toney, 161 F.3d 404 (6th Cir.1998), in which we found that an improper prosecutorial remark was non-flagrant and declined to order a new trial because a proper curative instruction followed a defense objection and the evidence was “overwhelming.” Id. at 411-12 . To-ney was prosecuted for participating in a scheme to defraud an insurance provider, Blue Cross, by cashing falsified benefit checks. Id. at 405 . The government alleged Toney acted in cahoots with three of her neighbors, Kristen Armstrong, Yvette Petty, and Bridget Reardon. Id. at 405 . All of the conspirators participated in receiving or cashing fraudulent benefit checks, along with another neighbor, Deborah Baker. Id. at 405-06 . Blue Cross issued some of the benefit checks to Toney for full-time care she claimed to have provided her terminally ill father. Id. at 406 . A jury convicted Toney of multiple counts of mail fraud. Id. at 405 .

At trial, Armstrong testified on Toney’s behalf. Id. at 407 . Armstrong admitted her own culpability but denied any knowledge of Toney’s involvement. Id. Prosecutors attacked Armstrong’s credibility by questioning her about inconsistent oral statements she allegedly made to the FBI at the time of her arrest. Id. Specifically, Armstrong was asked whether she had previously told the government that Toney participated in the fraud. Id. Armstrong denied making such statements and the government never presented any evidence otherwise. Id. Nevertheless, in its closing argument, the government made three references to Armstrong’s alleged prior statements. Id. at 410 . The Toney opinion summarizes the evidence actually presented against the defendant:

31 of the 48 fraudulent Blue Cross checks were mailed to Toney and were payable to her

4 other checks payable to Baker were also mailed to Toney’s home, with Armstrong ultimately receiving and cashing them

Toney endorsed and cashed 27 of the 31 checks

Toney cashed the checks at either the Viceroy Market, where she incurred a fee, or at various branches of Michigan National Bank, rather than depositing them in her own checking account

The 27 checks Toney cashed totaled $77,257.76, and the four she failed to *638 negotiate totaled $37,493.00, the combination being a very large sum of money for undocumented care she provided her father over an eight month period of time (to say nothing of the improbability that her father’s insurance would even cover such care)

Petty and Reardon knew the scheme was fraudulent and split the proceeds with Armstrong During the time frame of the scheme, a number of large cash deposits were made into Armstrong’s account for which there was no apparent source other than the Blue Cross checks payable to Toney

Armstrong’s excuses for the large cash deposits were not credible, e.g., that drug dealers paid her for letting them use her driveway to sell drugs Blue Cross systematically and electronically included vouchers (describing the subscriber and the provider) with its checks, which contradicts Toney’s testimony that no vouchers were attached to any of her checks

Toney admitted never having completed any paperwork for the alleged reimbursement and never having provided Armstrong with any details regarding the nature of the care she provided, e.g., the daily hours spent caring for her father or the travel distances to the hospital.

Id. at 411-12 . We found this case “overwhelming,” and thus a new trial unwarranted. Id. at 412 . Toney is an “overwhelming” case, Carroll is not, and the case against Galloway is weaker than the case against Carroll, or at least equally thin. The case law suggests, therefore, that the case against Galloway is not “overwhelming.”

Two other arguments deserve mention. First, logically, “overwhelming” must mean something more than certainty “beyond a reasonable doubt.” Otherwise, the first portion of the test, whether “proof of the defendant’s guilt is not overwhelming,” Francis, 170 F.3d at 550 , would be superfluous. One can conceive of a spectrum of sustainable guilty verdicts running from evidence proving guilt “beyond a reasonable doubt” on one end, to “overwhelming” evidence of guilt on the other. Appellate courts do not disturb a guilty verdict if any “rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). To keep “overwhelming” evidence analytically distinct from evidence of guilt “beyond a reasonable doubt” (at the other end of the spectrum), it makes sense that an “overwhelming” case is one in which no reasonable jury could acquit.

This is certainly not true in Galloway’s case. Galloway argued that Kirsch could not possibly have worked as his mule because he traveled with her. Put rhetorically, why would Galloway pay a mule to import drugs from Europe and risk arrest upon reentry, and then accompany the mule, thereby exposing himself to the very risk he paid to avoid? In his closing argument, the prosecutor answered the question himself:

I have tried several cases myself where we see the mule term, and we have a defendant who claims he or she is a mule, and I have had several cases where, kind of like the bodyguard scenario, where the individual who is responsible for the drugs travels with the individual carrying the drugs.

(J.A. at 225.) The government introduced no evidence establishing the propensity of mules to travel with their bosses. Instead, the prosecutor used his personal experience to annihilate the crux of the defense. Without the prosecutor’s testimony, a reasonable jury could have accepted Galloway’s theory.

*639 Second, due process concerns influence how we define “overwhelming.” As the Supreme Court explained in a habeas context, “[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974)). To make our test consistent with Darden , the government’s case can only be “overwhelming” (and thus precluding retrial) when the defendant’s due process rights were not disturbed despite the improper statement. Thus, “[t]he question is whether there is a reasonable possibility that the [inadmissible] evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 87 , 84 S.Ct. 229 , 11 L.Ed.2d 171 (1963). Applying this logic, this Court has reversed convictions when we were unable to “conclude that there is no reasonable possibility that the [improper prosecutorial] comments did not contribute to defendant’s conviction.” See, e.g., United States v. Solivan, 937 F.2d 1146, 1157 (6th Cir.1991).

Juries have great confidence in what prosecutors say. Since juries have confidence in the trustworthiness of prosecutors, see Berger II, 295 U.S. at 88 , 55 S.Ct. 629 , “improper [prosecutorial] suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Id; see also Bess, 593 F.2d at 755 (6th Cir.1979) (“An Assistant United States Attorney purports to represent the People of the United States, and thus carries a special aura of legitimacy about him.”). Relying on his own experience, the prosecutor explained that mules do, in fact, sometimes travel with their bosses. If the jury believed him — which is not an unreasonable assumption-then it cannot safely be said that the comment “did not contribute” to Galloway’s conviction. Solivan, 937 F.2d at 1157 . Whether looking at the dictionary definition of “overwhelming,” the case law, or background legal principles, the case against Galloway is sufficient to support a conviction, but not overwhelming.

The majority could concede this point, however, yet still justify the decision to affirm because the Francis test only requires reversal (even without overwhelming evidence) if the court failed to cure the impropriety by failing to admonish the jury. 170 F.3d at 550 . The majority argues that the trial court “satisfie[d] the curative instruction requirement.” The following is the entire relevant exchange, including the court’s response after the defense objected to the improper prosecu-torial comment:

Prosecutor: I have tried several cases myself where we see the mule term, and we have a defendant who claims he or she is a mule, and I have had several cases where, kind of like the bodyguard scenario, where the individual who is responsible for the drugs travels with the individual carrying the drugs.

Defense Counsel: I would like to object.

Court: Sustained. No evidence. Move on.

(J.A. at 225.) The court had an obligation to properly “admonish the jury.” Francis, 170 F.3d at 550 . The court said only, “Sustained. No evidence. Move on.” (Id.) Limiting instructions and sustained objections are different. The court’s remark does not appear to be an admonishment or limiting instruction at all.

*640 Returning to the dictionary once more, an admonition is “any authoritative oral communication or statement by way of advice or caution by the court to the jury respecting their duty or conduct as jurors, the admissibility or nonadmissibility of evidence, or the purpose for which any evidence admitted may be considered by them.” Black’s Law Dictionary 49 (6th ed.1990); see also Webster’s Third New International Dictionary 28 (1993) (defining “to admonish” as “to indicate duties, obligations, or requisite action to (a person)”). Thus, an “admonition” must have content. It needs to explain to the jury how to handle the improper statement in a manner consistent with the law. In a slightly different context, the Supreme Court explained:

Obviously, a limiting instruction can be used to give content to a statutory factor that “is itself too vague to provide any guidance to the sentencer” only if the limiting instruction’s own “definitions are constitutionally sufficient,” that is, only if the limiting instruction itself “provide[s] some guidance to the sen-tencer.”

Shell v. Mississippi, 498 U.S. 1, 3 , 111 S.Ct. 313 , 112 L.Ed.2d 1 (1990) (quoting Walton v. Arizona, 497 U.S. 639, 654 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990) (emphasis in original). This makes extremely clear that a limiting instruction must provide guidance, yet the trial court’s laconic response provides no guidance whatsoever. 3 Cf . Lakes v. Ford, 779 F.2d 1578, 1580-81 (11th Cir.1986) (finding curative instruction inadequate when it only contradicted a mandatory presumption, rather than explaining its importance and applicability).

What the majority terms an admonishment was not only unacceptably terse, it was hopelessly ambiguous. The prosecutor’s objectionable statement was one sentence long (fifty-four words) and occurred in the midst of a lengthy closing argument. Without greater specificity from the court, the jury may not have understood precisely what warranted the objection. Even assuming the jury knew that the court’s statement, “Sustained. No evidence. Move on,” meant that they should ignore something the prosecutor said, the jury would not know what to ignore. In Singer v. United States, 380 U.S. 24 , 85 S.Ct. 783 , 13 L.Ed.2d 630 (1965), the Supreme Court found the trial court’s limiting instruction sufficient because the “court’s admonitions to the jury seem to have been well designed to cure whatever prejudicial impact some of the prosecutor’s remarks may have had.” Id. at 36 , 85 S.Ct. 783 . Since the putative “admonition” in Galloway’s trial never identified what the court found *641 objectionable, it could not possibly have been “well designed to cure [the] prejudicial impact” of the prosecutor’s remarks. Id.

Finally, recall again the language in Francis, which requires that the court “admonish the jury.” 170 F.3d at 550 (emphasis added). The court’s rebuke was obviously aimed at the prosecutor, not the jury. The court ordered the prosecutor, not the jury, to “move on.” The jury undoubtedly heard the court sustain the defense objection, but no one can plausibly claim that the court directed its remark to jurors, which is what Francis requires. See id.

I would reverse the conviction. Since there was no admonishment following the defense objection, and the government did not present an overwhelming case, I respectfully dissent. See id.

. Unsurprisingly, the majority neglects to define "overwhelming,” which is the pivotal term. Leaving "overwhelming” ambiguous makes disparate application of Francis inevitable because courts can employ the language whenever necessary to reach the outcome they desire.

. Berger is also distinguishable because the prosecutor made several improper statements, although the Court focused on the most important one. The instant case involves the analysis of a non-flagrant prosecu-torial remark. To determine flagrancy, this Court considers (1) whether the statement misled the jury or prejudiced the defendant; (2) whether the remark was isolated or part of a series of improper statements, (3) whether the remark was deliberate; and (4) the total strength of the evidence against the accused. Francis, 170 F.3d at 549-50 . We only reach the second series of questions (whether the evidence was overwhelming, whether there was an objection, and whether there was a limiting instruction) if the remark was not flagrant. Id. The comments in Berger may have qualified as flagrant, unlike the statement here, but this distinction does not address the strength of the evidence in the respective cases.

. The majority claims that this Court's opinion in United States v. Solivan, 937 F.2d 1146, 1157 (6th Cir.1991), "indicat[es] that the timing of an admonition is more important than the firmness.” Solivan does explain that "[b]oth the timing and the firmness of the trial court's admonition are relevant in evaluating whether an admonition has been sufficient to mitigate prejudicial error.” Id. Soli-van, however, never suggests (as the majority does) that timing is always more important than firmness, or that timing and firmness are the only relevant considerations. See id.

In fact, the "firmness” of an admonishment is difficult to evaluate on appeal because the forcefulness of oral language depends heavily on volume, tone, cadence, facial expression, and so forth. Timing is "relevant,” as Solivan says, see id., but not dispositive. In fact, timing matters greatly, but no admonishment, no matter how rapidly delivered, suffices if the instruction lacks the content necessary to appropriately guide the jury’s deliberation.

The majority also cites Solivan for the notion that a curative instruction is only adequate if it is swift and proportional to the potential harm. See id. As the majority rightly concedes, the prosecutor's statement was clearly improper and prejudicial, which makes it hard to accept that a five-word snippet devoid of content was proportional to the potential harm.